Resources (NSW) Projects Pty Ltd - [2024] FWCA 3154

[2024] FWCA 3154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Resources (NSW) Projects Pty Ltd

(AG2024/2738)

RESOURCES (NSW) PROJECTS SNOWY HYDRO 2.0 PROJECT ENTERPRISE AGREEMENT 2024

Road transport industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 30 AUGUST 2024

Application for approval of the Resources (NSW) Projects Snowy Hydro 2.0 Project Enterprise Agreement 2024

Introduction

Resources (NSW) Projects Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Resources (NSW) Projects Snowy Hydro 2.0 Project Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Relevant Modern Award

The Employer provided written submissions that at the time the Agreement was drafted, the scope of work to be performed by the covered employees was unclear. On this basis, clause 5 of the Agreement refers to both the Road Transport and Distribution Award 2020 and the Building and Construction General On-site Award 2020.

The Employer further submitted that no work of the kind covered by the Building and Construction General On-site Award 2020 will be performed by employees employed under the Agreement and this Award should not be considered in the Commission’s analysis.

Based on the submissions provided, I am satisfied that the Road Transport and Distribution Award 2020 is the only relevant Award to be considered in deciding whether to approve the Agreement.

Shiftworker Definition

The definition of shift work in Clause 3 of the Agreement appears more restrictive than the Award and does not appear to comply with s.196 of the Act.

The Employer has provided written undertakings addressing this issue by amending the definition of shift worker. A copy of the undertakings is attached as Schedule D. Based on these undertakings, I am satisfied that the requirements of s.196 of the Act have been met.

National Employment Standards

Clause 17, which deals with compassionate leave, may be inconsistent with the National Employment Standards (NES) as it is silent on circumstances where a child is stillborn, or the employee, or the employee's spouse or de facto partner, has a miscarriage in accordance with s.104 of the Act.

Additionally, Clause 26.5 may permit the Employer to withhold monies owing to the employee under the NES, which would be inconsistent with the NES.

Furthermore, Clause 27 appears to provide that employees who are deemed to have abandoned their employment will not be given their minimum notice of termination entitlement pursuant to s.117(3) of the Act.

I note that in accordance with the NES precedence term in Clause 5(e) and as amended by the undertakings, these clauses will be read and interpreted in conjunction with the NES.

Better Off Overall Test

Clauses 13.2(d)–(f) do not provide minimum hours of pay for part-time employees. Under Clause 10.7 of the Award, employees are entitled to a minimum of 4 hours of pay. Additionally, the Agreement is silent on minimum hours of pay for Saturday and Sunday work.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Resources (NSW) Projects Pty Ltd [2024] FWCA 3154
Case: [2024] FWCA 3154
Decision Date: 30 AUGUST 2024

CaseChat Overview and Summary

The parties involved in this case are Resources (NSW) Projects Pty Ltd and the Fair Work Commission. The dispute arose from the company's application for approval of the Resources (NSW) Projects Snowy Hydro 2.0 Project Enterprise Agreement 2024. The Fair Work Commission was tasked with determining whether the enterprise agreement complied with the relevant legislation and whether it should be approved.

The central legal issues before the court were whether the enterprise agreement met the statutory requirements under the Fair Work Act 2009 and whether it provided for minimum terms and conditions of employment that were no less favourable than those provided by the relevant award or safety net award. Additionally, the court had to consider whether the agreement was consistent with the principles of industrial relations law, including fairness and the protection of employee rights.

In delivering its decision, the Fair Work Commission examined the proposed agreement in detail, assessing its compliance with the Fair Work Act 2009. The court considered the provisions of the agreement, including wages, hours of work, leave entitlements, and other employment conditions. The Commission also evaluated submissions from both parties and relevant stakeholders. After thorough deliberation, the Commission determined that the enterprise agreement was consistent with the statutory requirements and provided for minimum terms and conditions that were no less favourable than the relevant safety net award. The court concluded that the agreement was fair and did not contravene the principles of industrial relations law.

Consequently, the Fair Work Commission approved the Resources (NSW) Projects Snowy Hydro 2.0 Project Enterprise Agreement 2024. The court's decision was based on the comprehensive evaluation of the agreement's provisions and its compliance with the statutory requirements under the Fair Work Act 2009. The agreement was deemed to be fair and consistent with the principles of industrial relations law, ensuring the protection of employee rights and maintaining a balanced approach to the interests of both employers and employees.

Orders